STATE v. JOHNSON, 711 N.W.2d 733 (Iowa App. 2006)

No. 5-913 / 05-0269Court of Appeals of Iowa.
Filed January 19, 2006

Appeal from the Iowa District Court for Linn County, Robert E. Sosalla (plea), Amanda Potterfield (order on motions), and Thomas M. Horan (sentencing and judgment), Judges.

Irvin Johnson appeals from his guilty plea, judgment, and sentence for delivery of a controlled substance (cocaine base) in violation of Iowa Code section 124.401(1)(c)(3) (2003).AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Russell Keast, Jerry Vander Sanden, and Jason Burns, Assistant County Attorneys, for appellee.

Considered by Huitink, P.J., and Mahan and Hecht, JJ.

MAHAN, J.

Irvin Johnson appeals from his guilty plea, judgment and sentence for delivery of a controlled substance (cocaine base) in violation of Iowa Code section 124.401(1)(c)(3) (2003). He argues the district court erred when it did not appoint him new counsel for his arrest-of-judgment hearing. We affirm.

I. Background Facts and Proceedings

Irvin Johnson was charged by trial information with delivery of a controlled substance. The charge itself carries a possible ten-year sentence. However, the information also indicated that Johnson had another drug conviction, which made him eligible for a thirty-year sentence under an enhancement statute. Plea negotiations between Johnson and the State yielded an agreement in which Johnson would face a maximum sentence of ten years. In other words, Johnson would plead to the charge without the enhancement.

At his plea hearing, the court informed Johnson of the charge and the conditions of the plea:

COURT: With respect to [the plea agreement], Mr. Johnson, I think it’s important for you to understand when it comes time for sentencing though, it’s going to be a judge who makes the decision as to what that sentence is going to be.

MR. JOHNSON: Yes, sir.

COURT: Now, the judge will listen to any recommendation that the County Attorney might make, anything your lawyer might say, anything you yourself might say as it relates to sentencing, but in the final analysis it’s going to be the judge who is going to decide what the sentence is going to be. And what that can mean is following sentencing you could find yourself in the penitentiary for ten years as well as having to pay a $50,000 fine. Do you understand that?

MR. JOHNSON: Yes, sir.

COURT: Knowing that, do you still want to plead guilty?

MR. JOHNSON: Yes, sir.

The court went on to inform Johnson of the facts the State would have to prove were he to go to trial. Johnson admitted to the facts and pled guilty to the charge.

Later, Johnson filed a motion in arrest of judgment and a motion for new counsel. He alleged he was confused and did not understand the recommended sentence.[1] He asked that the court withdraw his guilty plea and appoint him new counsel.

At his hearing on the motions, Johnson was represented by his trial counsel. The district court found Johnson to be a highly incredible witness. It concluded Johnson made a knowing and voluntary plea. Therefore, the district court denied his motion in arrest of judgment. However, the district court did appoint new counsel for the sentencing proceedings.

Johnson contends the district court erred by ruling on his motion in arrest of judgment instead of rescheduling it so that he could be represented by new counsel.

II. Standard of Review

Johnson asserts a Sixth Amendment violation of his right to counsel. We review constitutional claims de novo. In re Detention of Hodges, 689 N.W.2d 467, 470 (Iowa 2004). We give deference to the district court’s credibility determinations, but are not bound by its fact determinations. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

III. Merits

We conclude the district court did not err when it failed to assign Johnson new counsel for the hearing concerning his motion for arrest of judgment. State v. Tejeda, 677 N.W.2d 744, 749-52
(Iowa 2004), requires only that some inquiry be made into a defendant’s allegations of a communication breakdown with counsel. An evidentiary or in camera hearing is not required every time a defendant alleges a breakdown in communication Id. at 751.

The basis for both of Johnson’s motions was his allegation that his counsel misinformed him such that he did not understand the recommended sentence. In order to justify having new counsel assigned, Johnson had to show sufficient cause. Id. at 749. “Sufficient cause includes a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.” Id. at 749-50 (quoting State v. Lopez, 633 N.W.2d 774, 779 (Iowa 2001)). The decision to grant the motion for substitute counsel is within the court’s discretion. Id. at 750. The district court did grant his request for new counsel. That counsel was appointed to represent Johnson at the sentencing proceedings. However, the court properly denied his motion in arrest of judgment and found it unnecessary to reschedule this motion for rehearing. The court made the requisite inquiry into the alleged communication breakdown as it determined the merits of Johnson’s arrest of judgment motion. It found Johnson’s testimony and claims to be incredible.

The transcript clearly shows Johnson was given full opportunity to express his concerns about his plea and his counsel to the court. The court concluded, based on Johnson’s experience as a criminal defendant and his statements at the plea hearing, that he had full understanding of the recommended sentence.[2]
The transcript from the plea proceeding supports that determination. We agree with the district court’s decision.

AFFIRMED.